Linder v. Thomas

• Decision Date: 08 February 1950
• Docket Number: No. 9849,9849
• Citation: 228 S.W.2d 300
• Parties: LINDER et al. v. THOMAS et al.
• Court: Texas Court of Appeals

Page 300

228 S.W.2d 300

LINDER et al. v. THOMAS et al.

No. 9849.

Court of Civil Appeals of Texas, Austin.

Feb. 8, 1950.

Looney, Clark & Moorhead, R. Dean Moorhead, Austin, for appellants.

Lee Curtis, Belton, Coleman Gay, Austin, Cox, Brown, Daniel & Curtis, Temple, of counsel, for appellees.

GRAY, Justice.

This is an appeal from a judgment of the district court overruling appellant's plea of privilege.

Appellees filed suit in the district court of Bell County, Texas, against Von Linder to recover on a note and to foreclose a chattel mortgage lien given by Von Linder as security therefor. This note was payable in Bell County and it and the chattel mortgage were executed by Von Linder. Numerous articles of personal property are described in the mortgage, but only those items mentioned in the pleadings as against appellant (C. Linder) are material here. This pleading is in one paragraph of appellees' petition and is: 'The defendant C. Linder is the father of Von Linder, and is claiming that he is the owner of the Lima Paymaster Shovel, dragline bucket, clamshell bucket and shovel stick described and included in the above described chattel mortgage executed by Von Linder, and is claiming that Von Linder has never owned any interest therein, which claim of ownership on the part of C. Linder is false and untrue, the facts being that C. Linder does not now, and at no time ever did, have any interest of any kind in said shovel, buckets and stick, and that Von Linder is now and was, at the time he executed both of said mortgages, the owner of said shovel, buckets and stick.'

Appellees' petition alleges that both Von Linder and appellant are residents of Travis County, and prays for foreclosure of the lien created by the chattel mortgage as against both defendants.

Appellant filed his plea of privilege and prayed that the suit against him be transferred to Travis County. In appellees' controverting affidavit they copied their petition, and, as to appellant, further alleged: 'The allegations contained in said First Amended Original Petition, and particularly in Section XVI thereof, aver, and it is a fact, that the defendant C. Linder is claiming that he is the owner of the Lima Paymaster Shovel, dragline bucket, clamshell bucket and shovel stick described and included in the chattel mortgages described in said First Amended Original Petition and executed by Von Linder for the purpose of securing the payment of said notes, and that C. Linder is claiming that Von Linder has never owned any interest in said Lima Paymaster Shovel, dragline bucket, clamshell bucket and shovel stick. The true facts are that C. Linder does not now have, and at no time ever did have, any interest of any kind in said Shovel, buckets or stick. In view of the asserted claim of ownership of said equipment by C. Linder, the said C. Linder is a necessary party defendant to this suit, and without the presence of C. Linder before the court in this suit to foreclose said mortgage, no adjudication of foreclosure can be made, and therefore under Exception 29a of Article 1995 of Vernon's Annotated Civil Statutes, this court has venue as to the defendant C. Linder.'

At the outset we may state that the pleadings do not allege, and the evidence does not show, that appellant is in possession of the property in question, or that he is claiming any title thereto by or through Von Linder.

We think the sole question for determination here is whether or not appellant is a necessary party to the foreclosure proceedings within the meaning of Section 29a of Article 1995, V.A.C.S. This section is: 'Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.'

In Faubion v. Rogers, 66 Tex. 472, 1 S.W. 166, 167, the court said: 'The only proper parties to a suit to foreclose a mortgage-and, of course, the rule holds good as to similar liens-are the mortgagor and the mortgagee, and those who have acquired any interest from them subsequently to the mortgage. 2 Jones, Mortg. § 1440. As there is no privity between an adverse claimant who is a stranger to the mortgage and the estate, he cannot be made a party for the purpose of trying his adverse claim in the foreclosure suit.'

In Hampshire v. Greeves, 104 Tex. 620, 143 S.W. 147, 150, the court said: 'The rule as announced by the decisions of our courts refers to adverse claims of those who are strangers to the mortgage and estate, but not to those who claim under the mortgagor. The text-books announce the rule to be 'adverse claimants cannot be made parties to a foreclosure suit for the purpose of litigating their title. The only proper parties are the mortgagor and mortgagee, and those who have acquired any interest from...